## Facts

- Michael Austin Jenkins and Bee Lyn Jenkins divorced in November 1992 and executed an Agreement Incident to Divorce (AID) approved and incorporated into the divorce decree.
- The AID required Michael to pay Bee $2,000 per month beginning November 16, 1992, on the first and sixteenth of each month, until a total of $144,000 was paid.
- Bee agreed to report the alimony payments as taxable income; the AID provided Michael’s payment obligation would be suspended if Bee failed to report the payments until she did so.
- Bee filed Chapter 7 bankruptcy on June 2, 1993; Harry Cure was appointed trustee of her bankruptcy estate.
- Michael stopped making alimony payments in June 1993, later making a $6,000 lump-sum payment in 1995.
- Michael filed a motion to clarify and enforce the decree (1994); the trustee intervened (1995) and sought enforcement of the unpaid contractual alimony.
- After a bench trial, the trial court awarded the trustee $107,000 in past-due alimony less a $28,000 offset for damage to Michael’s home; awarded $17,000 in future alimony based on anticipatory repudiation; and awarded attorney’s fees to the trustee. The court denied Michael’s requested relief and denied Bee’s counterclaim but awarded Bee attorney’s fees.
- Michael appealed, challenging the trustee’s right and capacity to recover, limitations, sufficiency of evidence for past and future alimony, and attorney’s fees awards.

## Issues

1. Whether unpaid contractual alimony owed under an AID incorporated into a divorce decree was property of the debtor-spouse’s bankruptcy estate recoverable by the Chapter 7 trustee.
2. Whether the trustee lacked capacity to sue for the alimony payments, and whether any alleged defect was preserved.
3. Whether the trustee’s claim was barred by limitations, including a two-year limitations period governing certain post-decree property-division enforcement claims.
4. Whether Michael’s conduct constituted anticipatory repudiation supporting an award of damages for future contractual alimony.
5. Whether attorney’s fees were properly awarded to (a) the trustee and (b) Bee, who did not prevail on her counterclaim.

## Decision

- The court affirmed the trustee’s recovery of past-due contractual alimony (subject to the offset), holding the unpaid payment rights were recoverable by the bankruptcy trustee.
- The court held Michael waived any complaint about the trustee’s capacity by failing to properly raise it in the trial court.
- The court rejected Michael’s limitations defense, treating the suit as one for a money judgment on a contractual obligation rather than a time-barred post-decree property-division enforcement action.
- The court affirmed the award of $17,000 for future payments based on sufficient evidence of anticipatory repudiation.
- The court largely affirmed the trustee’s attorney’s fees (including appellate fees), including on grounds of inadequate briefing on certain fee challenges.
- The court reversed and remanded the award of attorney’s fees to Bee because she did not prevail and the record did not show a sufficient legal basis for awarding fees to her in that posture.

## Legal Principles

- Contractual alimony created by an agreement incident to divorce, even when incorporated into a decree, may be enforced as a contractual money obligation.
- A Chapter 7 trustee may pursue collection of the debtor’s enforceable rights to unpaid contractual payments that constitute property of the bankruptcy estate.
- Challenges to a party’s capacity to sue must be timely and properly raised in the trial court; failure to do so results in waiver.
- Limitations provisions aimed at post-decree property-division enforcement do not control when the plaintiff seeks a money judgment for breach of a contractual obligation to pay.
- Anticipatory repudiation permits recovery of damages for future performance when the obligor’s conduct shows an intent not to perform remaining contractual duties.
- Attorney’s fees awards must rest on an applicable legal basis; awarding fees to a nonprevailing party requires an articulated and supportable ground.

## Conclusion

The appellate court upheld enforcement of divorce-related contractual alimony by a bankruptcy trustee, including damages for future payments based on anticipatory repudiation, rejected waived capacity and limitations defenses, affirmed the trustee’s fee award, and reversed and remanded the ex-wife’s attorney’s fee award for lack of a shown basis despite her nonprevailing status.


Jenkins v. Jenkins, 991 S.W.2d 440 (Tex. App.—Fort Worth 1999)